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MEfiDE JUDICIAL PROCEDURE 

JK 1555 
. A5 
1910 

c.p» 2 HEARINGS 



BEFORE A 

SUBCOMMITTEE OF THE COMMITTEE ON THE 
JUDICIARY, UNITED STATES'’SENATE 

u 


OX BILLS 


TO REGULATE THE PROCEDURE OF 
THE COURTS OF THE UNITED STATES 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1910 






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JUDICIAL PROCEDURE. 


HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON THE 
JUDICIARY, UNITED STATES SENATE, ON BILLS TO REGULATE 
THE PROCEDURE OF THE COURTS OF THE UNITED STATES, THE 
SUBCOMMITTEE CONSISTING OF SENATORS DILLINGHAM, NEL¬ 
SON, AND OVERMAN. 


Committee on the Judiciary, 

United States Senate, 

Wednesday, January 12, 1910. 

The subcommittee met at 2 p. m. 

Present, Senators Dillingham (chairman) and Overman. 

There were also present a committee of the American Bar Asso¬ 
ciation, consisting of the following-named gentlemen: 

Hon. Everett P. Wheeler, of New York; Hon. John D. Lawson, 
dean of the LTniversity of the State of Missouri, Columbia, Mo.; Hon. 
Frank Irvine, dean of the law school of Cornell University, Ithaca, 
N. Y.; Hon. Samuel C. Eastman, of Concord, N. H.; Hon. William L. 
January, of Detroit, Mich.; Hon. Stephen H. Allen, of Kansas City, 
Mo.; and Hon. Samuel Scoville, jr., of Philadelphia, Pa. 

The bills before the subcommittee for consideration are: S. 4568, 
“A bill to regulate the judicial procedure of the courts of the United 
States,” introduced by Senator Nelson December 21, 1909; S. 4569, 
“A bill to diminish the expense of proceedings on appeal and writs of 
error in United States courts,” introduced by Senator Nelson Decem¬ 
ber 21,1909; S. 4570, “A bill to authorize the appointment of stenog¬ 
raphers in the courts of the United States and to fix their duties and 
compensation,” introduced by Senator Nelson December 21, 1909; 
and S. 4138, “A bill to regulate practice on appeal to the Supreme 
Court of the United States and the United States circuit courts, of 
appeal,” introduced by Senator Jones December 16, 1909. 

Senator Dillingham. We shall be glad to hear you gentlemen on 
the subjects covered by these bills. 

STATEMENT OF HON. EVERETT P. WHEELER, OF NEW YORK. 

Mr. Wheeler. Mr. Chairman, we appear here as a special com¬ 
mittee on the reform of the law’s delays, representing the American 
Bar Association. 

One of the bills in which we are interested was before Congress last 
winter, and has been introduced again at this session. ^ The number 
of that bill in the Senate at this session is S. 4568. We have taken 
advantage of the opportunity afforded by the delay to make some 
desired changes in it. There are two other bills which we bring before 
you, which are Nos. S. 4569 and S. 4570, respectively. One of those 
relates to the matter of expense on appeals and the other to official 
stenographers for the federal courts. Those two bills are new at 
this session. 





4 


JUDICIAL PROCEDURE. 


Senator Overman. In either of those bills do you make any 
recommendation with regard to suits in forma pauperis, such as we 
have in some of the States? 

Mr. Wheeler. No. 

Senator Overman. There is no recommendation on that subject 
on the part of the bar association? 

Mr. Wheeler. I think that that is now regulated by rule. I 
know we have a rule on that subject in the second circuit, but I have 
never examined the subject so as to know how far it prevails in 
other circuits. 

Senator Overman. I was talking with Circuit Judge Pritchard 
about it, and he thought that there ought to be some legislation 
on that subject. He is the circuit judge of the fourth circuit. 

Mr. Wheeler. I should think the judges could regulate that by 
rule, as they do in the second circuit. A good deal of the federal 
practice is under rules, and the bar association is of opinion that as 
far as possible practice should be regulated in that way. 

Senator Overman. The printing of the record is a very important 
matter. We can have it printed in our district very reasonably, but 
it is an expensive matter to have it printed here. 

Mr. Scoville. The provisions of Senate bill 4569 would neces¬ 
sarily lead to its being done under the direction of the court below, 
by the clerk of that court. 

Senator Overman. I have just been reading that provision in the 
bill. 

Mr. Wheeler. The second section of bill 4568 provides for the 
revival of the common-law practice, of taking a verdict on questions 
of fact, reserving questions of law for subsequent consideration, and 
allowing the court of first instance to give final judgment on that 
record. Even if the court below should be of opinion that the plain¬ 
tiff was not entitled to recover it could liquidate the damages and 
enable the appellate court to render final judgment instead of going 
back for a new trial. 

Senator Overman. Did not the subcommittee practically agree on 
most of this bill before ? 

Mr. Wheeler. I hope so. 

Senator Dillingham. I find a memorandum among my papers in 
this matter to the effect that Mr. Frederick P. Fish, one of the most 
eminent attorneys of Boston, thinks that no action should be taken 
on the bills S. 4568 and S. 4569 if there is any chance of the appoint¬ 
ment of a commission by the President of the United States to con¬ 
sider the whole question of federal procedure and practice. 

Mr. Wheeler. We had that suggestion made to us, but it did 
seem to us that the old-fashioned Anglo-Saxon way was to do one 
thing at a time. We see two evils that certainly exist which can be 
remedied by bill 4568. 

Senator Dillingham. I see no impropriety in taking up any of 
those questions. 

Senator Overman. A commission receiving a good salary might 
take some years to complete their report. 

Mr. Wheeler. Let me say in regard to one of the other bills that 
were not before the committee at the former session—the bill in 
regard to official stenographers—that we drew the bill after confer¬ 
ence with Mr. Littlefield, who was on the Judiciary Committee of 


JUDICIAL PROCEDURE. 


5 


the House of Representatives for many years. The general scheme 
of it is to authorize the judges in different circuits to appoint official 
stenographers and fix their compensation at a rate not exceeding 
that paid in the State. In those States where there are no official 
stenographers (there are some such States) the judges are to fix 
the compensation. 

Now, the National Shorthand Reporters’ Association has sug¬ 
gested some amendments to that bill which I will state later. Our 
general feeling is that it is more important to provide for the appoint¬ 
ment than it is to be too tenacious on the details of compensation. 
The stenographers would, of course, be subject to the jurisdiction 
of the court. We all want to have suitable persons appointed, and 
we do feel that in many of the districts now it is a real detriment not 
to have an official stenographer. There can not be one at all unless 
both parties consent, and while that consent is usual in some juris¬ 
dictions, yet in others it is not. 

(It was then arranged that the further hearing of the committee 
of the American Bar Association should be had on January 13, 
and that Mr. McBride should now be heard.) 

STATEMENT OF MR. GEORGE A. M’BRIDE, OF PHILADELPHIA, 

PA., ON BEHALF OF THE NATIONAL SHORTHAND REPORTERS’ 

ASSOCIATION. 

Mr. McBride. Mr. Chairman, the National Shorthand Reporters’ 
Association, which as chairman of its committee on legislation 1 repre¬ 
sent, has an interest in any legislation looking toward the appointment 
of official stenographers in the United States courts as great as that of 
the other parties concerned. That association consists of about 700 
members, living in all sections of the country, the majority of whom 
are court reporters. 

The chairman of the committee of the American Bar Association 
has given you in general the purposes of the stenographers’ bill (S. 
4570) now before you, and in the main the association I represent 
has no objection to it. It is a difficult matter to frame legislation of 
this character which will meet all the varying conditions that exist 
in this country. It is self-evident that an act merely stating a salary 
at so much per year would not be a fair arrangement to the reporters 
in the more important districts as compared with the reporters in the 
less important districts. Whether he is justified in thinking so or 
not, the man who has to meet the requirements of official position in 
the larger and more important districts, like, for instance, New \ork 
City, with the increased expense incident to living there and the 
greater cost of office assistance to enable him to produce his tran¬ 
script, believes that he should receive more pay than his fellow- 
worker in a less important district, where the New York conditions 
as to home or office do not exist. The bill before you was framed 
by the American Bar Association with such a thought in view, and 
with one or two exceptions, which I will point out, it would work well 
not only in theory but in practice. As the members of your commit¬ 
tee are lawyers, it is hardly necessary to recall to your mind the 
advantage the corporation able to employ stenographic assistance 
has had in the past over its adversary not so well situated financially; 
nor is it necessary to refer to the labor imposed upon the judge and 



6 


JUDICIAL PROCEDURE. 


counsel in an endeavor to make what must of necessity be an incom¬ 
plete synopsis of the evidence in the case, due to the fact that the 
services of a stenographer are not within the means of the litigants 
or provided for by statute at the expense of the Government. 

It can be taken for granted that the state legislatures, knowing the 
conditions existing in the various States, have arrived, in most 
instances, at an approximately satisfactory solution of the question of 
rates and conditions. It would seem to be only fair that the stenog¬ 
rapher in one set of courts should receive the same compensation as 
the stenographer in another set of courts where the position is of prac¬ 
tically equal importance and responsibility. These positions should 
be sufficiently attractive financially to secure the services of skilled 
stenographers, trained to report accurately and transcribe their 
notes quickly, so that the business of the courts may be facilitated 
and the interests of litigants conserved rather than prejudiced. If 
it is worth while inaugurating the system, it should be done on the 
right basis, so that the question may be settled for years to come, if 
not forever. You do not want bills of this nature turning up ses¬ 
sion after session to bother you, and the courts, the lawyers, and the 
reporters do not want to bring the subject up again. This can be 
avoided by enacting legislation so flexible in its nature as to meet 
the changing conditions of the years to come. 

As to the first three sections of Senate bill No. 4570 I have nothing 
to say. Section 4 aims to apply the state rates, but does not neces¬ 
sarily do so. It says that “the compensation shall not exceed such 
as is now or may be hereafter provided by law in the state courts, 
etc.” This leaves a loophole for the fixing of any figure below that 
paid in the state courts. In addition, there are three States, Mis¬ 
sissippi, New Hampshire, and Washington, where there are no laws 
authorizing the appointment of official stenographers, and bill No. 
4570 as now drafted would not cover those districts. We therefore 
suggest that section 4 be amended as follows: 

“The compensation of such official reporters for their stenographic 
services and the furnishing of transcripts shall be that now or here¬ 
after provided by law in the state courts in the State in which such 
circuit or district court is held. If there be no law regulating the 
compensation of court reporters in the courts of any State, then 
the compensation to the official reporters of the courts of the United 
States shall be fixed by the judge or judges thereof at the highest 
rate under the laws of the States contiguous thereto. In addition, 
the judges of the courts of the United States shall authorize the 
allowance to the official court reporter of such mileage, expenses, and 
supplies as may be deemed proper under the circumstances. Such 
compensation for services, mileage, expenses, and supplies shall be 
paid to the stenographers herein authorized in the same manner 
as the salaries of the judicial officers are paid. The fees to be paid 
to such official reporters by the parties to actions or proceedings in 
said courts shall be prescribed by rules to be adopted by said circuit 
court in each district. They shall be such as are now or may be 
hereafter required to be paid to the state official court stenographers 
in the respective States in which said circuit and district courts are 
held, if any such there be, or if any State has no law on the subject, 
they shall be fixed at the highest rate paid under the laws in the 
States contiguous thereto: Provided, however, That no transcript 


JUDICIAL PROCEDURE. 


7 


shall be made for the court or for the Government until an order 
lias been entered upon the minutes of the court requiring such trans- 
script to be furnished, and then the expense thereof, at. the rates 
provided in this section, shall be paid to the reporter by the United 
States, upon the certificate of the presiding judge, in the same man¬ 
ner as the salaries of judicial officers are paid.” 

We believe it was the purpose of the draftsman of the Senate bill to 
put the United States court reporter on the same footing as the state 
court reporter in the same section of the country. Unless an amend¬ 
ment of the nature proposed is adopted, there will be districts where 
the law must be inoperative because of the lack of provision for the 
payment of the stenographer. In whatever action is taken by 
Congress it must be borne in mind that the amount paid to the court 
stenographer is not net to him. Out of it he must pay for the services 
of expert office assistants and maintain an adequate equipment of 
machinery and office appliances, so that the court and counsel may 
be furnished with copy promptly. If the stenographer is ill or for 
any reason is temporarily unable to attend to his duties, he must 
supply - a substitute and pay him out of his own income. In the time 
spent in court he is constantly under tense mental and physical strain, 
and for the hours of an ordinary business day he receives his salary 
or per diem. His work of transcribing must be done after court 
adjourns, and is properly paid for as a separate item, because it 
varies in amount and can not be compensated for in a lump sum. 
This latter earning is much in the nature of blood money or overtime, 
the term used by the mechanical classes. The labor and study 
required to fit the stenographer for the position of court reporter are 
just as great as are necessary in the majority of the so-called “ learned 
professions,” and the experience coming from skillfully practicing his 
profession for many years is something which should be well paid for. 
We ask you to look at our side of the question, as we believe you will. 
It is proper that the court, counsel, and litigants should be facilitated 
and aided by every method known and practiced in modern courts, 
but do not forget the silent man or woman who is making the record 
upon which depends in a large measure the success of the appeal to 
the higher court, and whose accuracy of reproduction often convinces 
the loser before the jury of the futility of further proceeding in the 
case. We have always felt that the judiciary committees of the 
Senate and House, consisting of lawyers, have a pretty accurate idea 
of the position of the court reporter, and with that thought in our 
mind we have not hesitated to come before you and state our case. 
We believe it unnecessary to go into great detail, because you are 
already familiar with the conditions, but if there is any information 
which this committee desires, that lies in the power of the committee 
on legislation of the National Shorthand Reporters' Association to 
furnish, we shall be very happy to furnish it. 

I ought to say that one of the members of the committee on legis¬ 
lation of the National Shorthand Reporter’s Association is Mr. E. V. 
Murphy, Official Reporter of the Senate. He has not been very well 
of late and is unable to be present. The other member is Mr. Charles 
F. Roberts, of New Haven, Conn. Mr. Roberts being a member of 
the bar and now actively engaged in the trial of a cause in New 
Haven, is unable to be present. We had not heard of this meeting 
until early this week and were unable to make arrangements in 
advance. 



8 


JUDICIAL PROCEDURE. 


I, however, speak for the association and in what 1 have said I am 
sure they will concur. I do not know whether there is anything 
more that.I need to say except to repeat that in the main the bill is 
satisfactory to us and is, I think, as nearly a workable bill as could 
very well be devised. It is a simple proposition to apply the state 
conditions,’and I think any other system would be defective. 

I desire in closing to express to this committee of the Senate the 
cordial thanks of my associates and myself for this hearing. 

(The subcommittee then adjourned until Thursday, January 13, 
1910, at 2 p. in.) 


Committee on Judiciary, 

United States Senate, 
Thursday, January 13, 1910. 

The subcommittee met at 2 p. m. 

Present, Senators Dillingham (chairman), Nelson, and Overman. 

STATEMENT OF HON. EVERETT P. WHEELER, OF NEW YORK— 

Resumed. 

Mr. Chairman and gentlemen of the committee, the committee may 
remember that last year—I think in April—we had a hearing on a bill 
that was introduced by Senator Nelson, and which he has reintroduced 
at this session, which is on the calendar as No. S. 620. There were 
some criticisms made both by your committee and by the House 
committee at the previous session in reference to the language of the 
bill. Those criticisms were considered by the American Bar Associa¬ 
tion and the language of the bill has been somewhat changed to meet 
them. Then again we had not prepared at that time a section on the 
subject of changing the procedure on the trial. That we have pre¬ 
pared and submit in this hill No. S. 4568, which is before you to-day. 
That is in the second section. 

In brief , let me say that the object of the first section is to prevent 
both the delays and the expense (one depending upon the other) con¬ 
sequent upon reversals and the granting of new trials on technical 
points that, in the j udgment of the court, do not really affect the merits. 

The phrase which we use here, ‘ ‘ unless, in the opinion of the court 
to which application is made, after an examination of the entire cause, 
it shall appear that the error complained of has resulted in a miscar¬ 
riage of justice/' is taken from the English rule under their judicature 
act. There was some criticism made upon that phrase. Our view, 
and that particularly of one of our members who is not here to-day, 
Judge Amidon, of the district court of Dakota, was that as that had 
been adopted in the English system and had proved satisfactory there, 
it formed a precedent. But the criticism has been made that the 
language has often been used in a popular and vague sense, and that 
consequently something according more with our terminology would 
be more useful in our bill here. 

To meet that suggestion we have prepared an alternative form, 
which we submit to the committee. The Bar Association did recom¬ 
mend the language as printed in the bill, yet if your committee should 
think the other preferable we should be entirely satisfied. 

That would change lines 13 and 14, page 1, of bill S. 4568, so that 
the whole clause would read, “unless in the opinion of the court to 



JUDICIAL PROCEDURE. 


9 


which application is made, after an examination of the entire cause, 
it shall appear that the error complained of has injuriously affected 
the substantial rights of the parties.” 

That language, let me say, is taken from the New York Penal Code, 
and has been construed by our court of appeals in a recent case, The 
People v. Strollo (191 N. Y., 42). 

At page 61 the court said: 

“Under the statute our powers and duties in capital cases are 
strictly correlative. While we have power to reverse in the inter¬ 
ests of justice, even where no exceptions are taken, it is also our 
duty to disregard errors which, although excepted to, do not affect 
the substantial rights of a defendant. Guided by this rule we feel 
constrained to hold that none of the general criticisms referred to 
under this head present sufficient-grounds for reversal.” 

And then the court proceeds to point out how paradoxical it is 
that while in a civil case they might be required to reverse or grant 
a new trial, yet they are directed in criminal cases not to reverse 
under such circumstances. 

Whichever language be adopted our object would be to simplify 
the practice in both civil and criminal cases in the federal courts 
throughout the country in the same way that we have found to work 
admirably in several state jurisdictions—notably in New Hamp¬ 
shire, Massachusetts, New York, Pennsylvania, and Kansas. In 
all these States provision has been made by which a verdict of a 
jury may be taken on any question of fact, reserving questions of 
law for subsequent consideration: and then either the trial court or 
the court on appeal can give final judgment, taking that finding of 
the jury as the basis of fact on which their legal judgment is to 
proceed. 

Under the present system as it prevails in many States and many 
circuits, the court, if it thinks the disposition of the case below is 
in any form erroneous, feels bound to order anew trial, and the whole 
case has to- be gone over again. 

I need only to remind you of the gross evils that arise from that 
method of procedure. The first trial, so far as the testimony is con¬ 
cerned, is certainly the most satisfactory. The memory of the wit¬ 
nesses is then most fresh, the occurrences are more recent, the wit¬ 
nesses can be more readily obtained. If the trial is not final as to 
the facts, the witnesses scatter, and some die. You can not read their 
written testimony as effectively as you can hear their oral testimony. 
The whole object of common-law practice is to get the oral testimony 
before the jury and the court. The plan we now recommend pro¬ 
motes that object. It gives notice to counsel that they must not 
run the chances of a second trial in order to get in some evidence that 
it was not very convenient to get in at the first trial—that the first 
trial is to be the final trial, as far as may be, as to the facts. 

Senator Nelson. Why should you have a double trial on issues of 
law and not on issues of fact? Why should you submit questions of 
law to revision and not questions of fact ? Why make one more final 
than the other ? My experience is that there are more blunders made 
by the courts than by the juries. 

Mr. Wheeler. That is the object of the bill, to make it possible to 
rectify the blunders of the court of first instance without sending the 
case back before another jury. 



10 


JUDICIAL PROCEDURE. 


Senator Nelson. But sometimes the jury blunders. 

Mr. Wheeler. The bill does not take away the power of the court 
to set aside the verdict if it is against evidence. 

Senator Dillingham. Trial courts are very slow v to do that, 
ordinarily. 

Mr. Wheeler. Yes. Well, I think they ought to be, because, after 
all, the theory is that the jury are the judges of the facts. 

Senator Dillingham. There is sometimes the submitting of special 
questions of fact to the jury. 

Mr. Wheeler. That is what we propose. In some of the circuits 
the courts do that now and in some they do not. In the circuit court 
of New Hampshire, for example, the court would follow, in that' 
respect, the New Hampshire practice, which has been developed by 
judicial construction, as our friend Mr. Eastman can tell us from his 
own experience. 

But whether the State practice allows it or not, we should allow it 
to be done in the federal courts, and if it should prove beneficial there 
the States would adopt it. Federal jurisprudence ought certainly to 
be the leader in any much-needed reform. 

I hardly feel that I ought to spend much time in calling attention to 
the delays that under the present system do actually occur. 

Senator Dillingham. I think we are all somewhat familiar with 
that point. 

Mr. Wheeler. I think we need hardly do more than note that on 
the brief. 

Senator Dillingham. I think I for one should like you to enter 
more into detail in your argument on the special feature you were dis¬ 
cussing a while ago. I have been in the habit, on the trial of cases, 
very frequently of suggesting that certain questions be put to wit¬ 
nesses upon which they can give direct answers, and then the court 
proceeds to state to the jury-— 

Senator Nelson. We do that in our State. 

Senator Dillingham. I think we do that in all of the States, but the 
taking out of the whole case and submitting it on some of the issues 
is new to me. 

Mr. Scoville. We do that in Pennsylvania with much success. 

Senator Nelson. As I understand, on questions of fact, the finding 
of the jury is to stand. Would you have the courts pronounce judg¬ 
ment then ? 

Mr. Wheeler. Yes. 

Senator Nelson. That would be adopting in a modified form the 
continental system and such as we have in the Philippine Islands, 
which would really leave the appellate courts to make final decision. 

Mr. Wheeler. The modification is due to the provision of the 
seventh amendment to the Constitution that “no fact tried by a jury 
shall be otherwise reexamined in any court of the United States than 
according to the rules of the common law.” At common law that 
could only be done in the court of first instance. In the King’s 
bench, in banc, for example, the verdict of a jury that was against 
the weight of evidence could be set aside. It was not often done, but 
still the full court had the power to do it. But under our system the 
circuit court of appeals, in jury cases, has no power to reverse upon 
the facts, because it is a separate court. 




JUDICIAL PROCEDURE. 


11 


Senator Nelson. Let me ask you one question for information. 
Under the original New York Code, which was adopted in Wisconsin 
and which we have in Minnesota, where I live, one of the grounds 
which the appellate court could consider was whether the verdict 
was supported by the evidence. 

Mr. Wheeler^ Yes. 

Senator Nelson. A motion would be made in the court below to 
set aside the verdict on the ground that there was not sufficient 
evidence. That motion was denied. That was made an error of 
law in the appellate court, and the appellate court could go into the 
question whether, as matter of fact, there was real evidence to sup¬ 
port it. Now, would you cut that questoin off by this amendment ? 

Mr. Wheeler. No; we make no change in that respect. That 
power does not now exist in any of the federal appellate courts. 

Senator Nelson. But do you not still have it in the appellate court 
of New York? 

Mr. Wheeler. Yes; the appellate division of the supreme court 
has jurisdiction to review questions of fact. The court of appeals 
can only review on questions of law, but the appellate division of 
the supreme court has the same power that the English court en 
banc had. Many of our state courts now do review on the question 
of facts; and your State. 

Senator Nelson. Yes. 

Mr. Wheeler. And now, in answer to Senator Dillingham’s ques¬ 
tion let me illustrate by a case within my own experience. I am 
counsel for the Hamburg-American Line. We were sued at common 
law for injuries growing out of a collision. One of our points was 
that the other ship had changed its course before the collision. I 
asked the judge to submit that question to the jury—whether the 
pilot boat had changed her course before the collision. The judge 
did so. I also asked him to submit specifically the question whether 
the proper signal had been given by the steamer. I had the right 
under the New York practice to move the court upon these findings 
to direct that judgment should be entered for the defendant, not¬ 
withstanding that the general verdict of the jury was for the plaintiff. 
The effect of the general verdict of the jury was really to assess the 
damages. They found upon the record how much the plaintiff was 
injured by the collision. Then it was open to me, not only in the 
trial term, but in the appellate division of the supreme court, to 
argue that judgment should be rendered in favor of the defendant. 

Senator Dillingham. Is that by statute ? 

Mr. Wheeler. Yes. This was in the New York State court. 

That practice simplifies matters very much. It gets the fact that 
is really at issue upon the record and enables the court to render final 
judgment accordingly. As my associate, Mr. Scoville, suggests, that 
obviates the serious inconvenience, injustice, and expense caused by 
requiring a new trial when there has been an error on one part of the 
case only. 

I am going to ask Mr. Eastman a little later to state how this 
system which we are providing for here has worked practically in 
New Hampshire. 

The third, fourth, and fifth sections of the bill relate to writs of 
error in criminal cases and appeals in habeas corpus cases. It is pro- 


12 


JUDICIAL PKOCEDURE. 


vided that in all such cases the writ of error must be allowed by a 
justice of the appellate court. 

An existing evil that we find in criminal jurisprudence is this: 
A man has been indicted in the state court and convicted. The 
judgment is affirmed in the state appellate court. Then, in order 
to bring the case within the jurisdiction of the Supreme Court here, 
he takes out a writ of habeas corpus from the federal court, and if 
that is denied and an order made to remand him he appeals from 
that to the circuit court of appeals. All sorts of absurd points are 
made in such cases. I think the last case that went up from New 
York was upon the trivial point that the counsel who argued the 
appeal had never seen his client, and he maintained that he had a 
constitutional right that his counsel should see him. 

Innumerable cases of that sort have arisen and been productive 
of great delay and uncertainty in the administration of justice. 
We submit to the committee that all the authorities on criminal 
law agree that certainty in the administration of justice is much 
more deterrent to criminals than is its severity. If a man thinks 
he has a good chance to get off, he will be more likely to commit a 
crime that he wants to commit than if he were certain he would be 
convicted, even if the certainty is of a milder punishment. And 
we submit that if a lawyer can not ex parte convince a judge of the 
appellate court that there is merit in his case, the conclusion is 
inevitable that there is none. 

As to section 6, that changes the present law so as to take all 
writs of error in capital cases to the circuit court of appeals instead 
of the Supreme Court. Now they go to the Supreme Court, and that 
is really the only federal court that can now review capital cases. 
That was. perhaps because it was thought that capital cases were the 
most important. No doubt they are important to the offender. But 
it is also important to society that if a man commits a crime he shall 
be punished. The great object of law should be to protect the inno¬ 
cent. It is they who are entitled to protection. That being so, it 
is not only unjust to the public but to the court to throw all that 
considerable mass of appellate jurisdiction directly upon the Supreme 
Court. If a really important constitutional question should arise, 
the Supreme Court could still grant a writ of certiorari. This change 
in the existing statute would enable the Supreme Court to separate 
the really important cases from those in which the writ is sued out 
solely for delay. 

I shall be glad to have some other members of our committee heard, 
but I wish now to call the attention of Congress to the fact that the 
deplorable delays in the civil and criminal law have received the 
attention of no less an authority than the President of the United 
States. I will read from his message: 

“In my judgment, a change in judicial procedure, with a view to 
reducing its expense to private litigants in civil cases and facilitating 
the dispatch of business and final decision in both civil and criminal 
cases, constitutes the greatest heed in our American institutions.” 

That puts the case very strongly, and the President goes on to speak 
of the lynchings that are the result of uncertainties and delays in the 
administration of justice. 

We feel, coming as we do from all parts of the country, represent¬ 
ing the bench and the bar, that the President has not put this matter 



JUDICIAL PROCEDURE. 


13 


too strongly. These matters have received very grave consideration 
at the hands of the American Bar Association. The meeting at . 
Detroit last August, after much debate, adopted these provisions that 
we propose. \v e feel, therefore, that we have done our best, and we 
submit it for the consideration of the committee. I shall be glad if 
some other members of our committee may now be heard, and will ask 
Mr. Eastman to address you. 

Senator Dillingham. I should like to hear Mr. Eastman as to 
section 2 especially, of the bill S. 4568, which is the principal bill, I 
take it, that is before us. 


STATEMENT OF HON. SAMUEL C. EASTMAN, OF CONCORD, N. H. 

Mr. Eastman. Mr. Chairman and gentlemen of the committee, 
the practice in New Hampshire is not the result of legislation, but 
of action on the part of the court, under the inspiration and leader¬ 
ship of Doe, chief justice, of whom, no doubt, you have heard. He 
started at a time when the question of procedure was being agitated 
in Great Britain. He saw what they were endeavoring to accom¬ 
plish there, and he set to work to establish a code of practice for New 
Hampshire. He did it very effectually. 

It is hardly worth my while to go into the details of it on this 
occasion. Sir Frederick Pollock, commenting on what had been 
done by that judge, said that his course had been a very bold one, 
and that he did not think any judge in Great Britain would have 
ventured on such a course, but he did not deny that the judge had 
accomplished results. 

Under our practice, if the court above discovers an error in the 
trial of any part of a case—any branch of it that was laid before the 
jury—and if the matters of error can be discriminated and separated, 
the verdict of the jury is allowed to stand excepting so far as it was 
improper. 

In answer to the question that was put to my brother Wheeler, 
suppose it were a horse case—those cases were more important years 
ago than they are now—and suppose the questions were whether 
there was a warranty, and if so whether the horse was afflicted with 
spavin, and if so what was the damage ? Now, there are clearly three 
questions that are submitted to the jury, and they have to pass upon 
all of them, although their verdict may be a general one. 

Suppose in the first instance that the question was, Was the con¬ 
tract made ? If there was no evidence on that question, and the 
appellate court should so hold, resubmission of the whole case should 
not be required. 

In a case of negligence the first question might be, Was the de¬ 
fendant negligent? The second question might be, Was the plaintiff 
exercising due care ? And a third question would be the question of 
damages. Now in that case an erroneous ruling might be made 
upon any one of those questions, which, in the opinion of the court, 
might be resubmitted to the jury, but otherwise the verdict would 
stand and the case would be sent back only for trial on the question 
respecting which there.had been error. It often happens that the 
counsel would not be anxious to try the case on that one point only 
and you would never hear any more of that case. 


14 


JUDICIAL PROCEDURE. 


Senator Dillingham. Then I understand that you would not send 
the case back except on that one point, and would try it on that 
alone. 

Senator Nelson. But there are sometimes questions that are appar¬ 
ently so mixed of law and fact that you can not say that they are 
purely questions of law. Take the three points you suggested: First, 
was there a contract ? That is a mixed question of law and fact un¬ 
doubtedly. Second, did the horse have spavin? and third, what was 
the damage? Those last two questions are pure questions of fact, 
but the first proposition is a mixed question of law and fact. 

Mr. Eastman. Undoubtedly, and it is the duty of the court in the 
trial of the case to instruct the jury as to the legal principles appli¬ 
cable to the question whether there is a contract or not. And it may 
be that there would be the very error that would cause the court 
above to send that back for a new trial. It might be found that the 
court made a grave mistake in that, and in that case it would be sent 
back to them, and the judge who would try over the case would try 
it in accordance with the decision of the court above, and the case 
would be presumably submitted to the jury now in a proper manner. 
And while the jury would in many cases, being the judges of the law 
and fact, come sometimes to a wrong conclusion, still that is insepa¬ 
rable from our method of jury trial, and I do not know how it can be 
eliminated. 

It is the province of the jury to settle questions of both law and 
fact in slander cases or cases of libel. It is a result, in part, of our 
contest for liberty that the jury has taken the matter out of the 
hands of the court, as in the celebrated case of the trial of the seven 
bishops in the time of James the Second, where the jury disregarded 
the instruction of the court, under the law, and found that the 
bishops were not guilty, which finding was for the benefit of our liber¬ 
ties at the present time, no doubt. 

I think I have covered all that I am called upon to say in regard to 
the question that Senator Dillingham put, and to show how it is met 
by the practice of the court in New Hampshire. 

If there is anything of sanctity in the trial by j ury, if it is the best 
resource that we have for securing justice between man and man, 
while no one pretends that it is not subj ect to error, it seems as if the 
course now proposed was the proper one, and that a man having his 
day in court and a fair trial, on the issues to be presented, unless there 
is error in the way in which the case was tried, those things that were 
properly submitted should stand. 

Senator Nelson. In your theory, the assumption is implied that 
there is no error in the finding of fact by the jury, and therefor that 
should not be reversed or considered over again, but there may be 
error in the action of the court, and that you want tried over again ? 

Mr. Eastman. On this principle the jury have plenty of time for 
consideration. There is no reason to suppose that another jury of 
12 men, having the facts submitted to them in the same way, 
would come to a different conclusion. If the jury have gone so far 
astray that one can not be discriminated from the other, the court 
on the trial of the case has the power to set the verdict aside and give 
a new trial. But ordinarily the courts will not do that. They say 
men of sound common sense may come to different conclusions, 
and while I may come to a certain conclusion I can not say that other 


JUDICIAL PROCEDURE. * 


15 


men of good common sense may not come to another conclusion. 
That is the reason, I think, why we sustain the idea of the jury trial. 
We have got either to abandon the idea of the jury trial, or stand 
by it on that principle. The jury may, of course, come to an error 
on things in which there was no error during the trial, and injustice 
is no doubt sometimes done in consequence thereof. But when you 
come to the question of law, as was indicated in the comments on a 
case which is stated in Mr. Wheeler’s brief, where 100 or more 
exceptions were taken on the trial and the court above say that 
the trial judge was generally right, the wonder is that in a hotly 
contested trial lasting for a long time the presiding judge did not 
make more mistakes than he actually did. 

The appeal is from a decision made on the moment, to a tribunal 
that has time to calmly consider and see what the law is, as has been 
previously decided, or what it ought to be, in a well-conducted argu¬ 
ment on both sides to show what the truth is. 

Even the highest tribunal may make a mistake. 1 have heard of 
persons who have had the audacity to question some of the decisions 
of even the Supreme Court of the United States. I believe there 
have been cases where the largest minority that was possible have 
dissented from the conclusions at which their brethren had arrived; 
but notwithstanding that, inasmuch as there must be some finality 
to things, we have to take some decision as final. 

It seems to me, Senator Nelson, that that is a fair answer to your 
suggestion. It may be that we can not all correct errors, and that 
the courts will commit some errors that can not be corrected, and if 
we could see some way in which we could make it certain that the 
court would always be right we should join with you and with every¬ 
body else in trying to secure that result. 

Senator Nelson. I think you have indicated one thing, and that 
is that our nisi prius judges are far from infallible. We passed a 
law here a couple of years ago providing that the Government might 
have a right of appeal in criminal cases, and I have been interested 
to see the application of that law. Some 20 or 30 cases have gone up, 
and in about 75 per cent of them the Supreme Court has reversed the 
court below. In those cases under the rulings of the nisi prius judge 
the defendant would lose his case. 

Mr. Eastman. I think that law was beneficial. 

Senator Nelson. Yes; it works well. 

STATEMENT OF HON. STEPHEN H. ALLEN, OF TOPEKA, KANS. 

Mr. Allen. Mr. Chairman, in Kansas we had originally the Ohio 
code, which of course was modeled after the New York code. The 
purpose of the change was to get away from the round of repeated 
trials and from the reversals which were perhaps no more numerous 
nor more indefensible in our State than in any other State. 

I took occasion to examine the reported decisions in the last two 
volumes of our reports and 1 found that in more than 30 per cent of 
the cases no mention was made in the syllabi of the questions on 
which the parties themselves had a controversy. The questions 
noted were altogether those on which lawyers had differences of 
opinion, under the rules of procedure. A large part of the attention 
of the court was given to questions of practice. Now in our procedure 


16 


♦ JUDICIAL PROCEDURE. 


we undertook to adopt as far as possible the English procedure, that 
having been in force for more than thirty years and having proven 
eminently satisfactory. We did not attempt to adopt that procedure 
as a whole, because-that would be impracticable under the constitu¬ 
tion of our courts and our whole system, but we undertook to adopt 
the essentials of the English procedure, and we found that the car¬ 
dinal principle on which we must work was to cut out the formalities 
the arbitrary rules. 

It seems to me that the President speaks for the whole country, 
for the common people, for the business people, and for everybody 
outside of the legal profession. I am sorry to say that the legal 
profession, in their sentiments on this subject, are the slowest of 
anybody, and that this system of technicalities has been condemned 
through and through by the business men and by everybody whose 
rights are jeopardized by the system—that the legal profession are 
not quite up. However, they are coming up, and the American 
Bar Association has taken hold of this matter with a view to remedy 
the evils, as far as practicable, that are most flagrant, and this bill 
is presented with that view. 

We all realize that the misery, if I may use that expression with 
regard to procedure in the courts, is that we first try a case and it is 
reversed; we try it again and it is again reversed. We had a case 
out in Kansas—the Hillman case—which was an action brought by 
a widow to recover life insurance, which was reversed a third time 
twenty-three years after the case was commenced, after having 
been in the Supreme Court twice. 

Of course this is not a wholesale revision of the law, but it strikes, 
it seems to me, at the two propositions that are most injurious. One 
is the disposition of the court to reverse and send back for a new 
trial simply because the trial judge has made an erroneous ruling in 
the progress of a case. As is said in a New York case, it requires 
more than human wisdom for a trial judge to ride on all the 
different matters that come before the court in a long and compli¬ 
cated case without making an error or differing in opinion with the 
reviewing court. For it comes to that. Here is a controverted 
question as to what is the strict rule of procedure. The trial judge 
exercises the best judgment he can, and the reviewing court differs 
with him and sends the case back for retrial. 

Of course, this committee of the bar association is prepared to 
speak only for that association under its resolution. This com¬ 
mittee is not authorized to recommend any theory of general re¬ 
vision which the President has recommended. It is quite likely that 
the President’s recommendation will go further with Congress than 
the recommendation of this committee. And personally I agree 
fully with the President that what is needed is a revision of the law, 
wiping out the whole system of technicality, and formulating a sys¬ 
tem of rules similar to, though not, of course, identical with, the 
English rules, which aim at substantial justice and speedy justice. 

In our State we have succeeded in passing the revision which was 
prepared by the committee of our bar association and approved by 
the association. The principal part of the amendment was simply the 
elimination of a lot of arbitrary requirements. And we have in sub¬ 
stance the provisions that are contained in the bill, allowing the 
court to take a verdict upon the questions of fact and providing that 


JUDICIAL PROCEDURE. 17 

a retrial, when granted, shall be on the points as to which there shall 
have been error. 

Thus far everybody, so far as I know, is thoroughly satisfied, and 
more than satisfied, to get away from that chain of technical rules 
which has been such a hindrance. 

Senator Dillingham. In what State has the change indicated in 
section 2 been brought about by statute ? 

Mr. Scoville. In Pennsylvania, for one State. 

Senator Dillingham. The State of Pennsylvania has such a 
statute ? 

Mr. Scoville. Yes. 

Senator Dillingham. What other States ? 

Mr. Wheeler. New York and Kansas. 

STATEMENT OF HON. FRANK IRVINE, DEAN OF THE LAW SCHOOL 
OF CORNELL UNIVERSITY, ITHACA, N. Y. 

Mr. Irvine. Mr. Chairman and gentlemen of the committee: It 
is with some diffidence that I venture to say even a word, because I 
know that we professors are often looked upon as having fantastic 
notions in our heads. But I may say that I have not always been a 
professor. I have had some opportunity of observing the evils of the 
present system of administration. I have practiced somewhat in 
the District of Columbia and somewhat in Nebraska and was a judge 
of nisi prius in that State, and afterwards a judge of the supreme 
court or that State. So that I have had opportunity of looking at 
this problem from different points of view. 

I will say that the horror of our present system never appeared 
fully before me until I came to look at it subjectively—when I came to 
teach. 

It is not pretended that this bill or any bill will operate as a complete 
remedy, but merely that the provisions presented are steps in the 
right direction. They aim at the correction of some of the greatest 
evils. I think there is a presumption in favor of their efficacy from 
the manner in which they have been indorsed. Indorsement by the 
American Bar Association was not a perfunctory indorsement. 
The debate was active and thorough. The Bar Association of New 
York has proposed certain amendments to the New York Code of 
Procedure embodying, I think, all that is in this bill. 

Mr. Wheeler. All that is germane. 

Mr. Irvine. I think the members of the American Bar Association 
and of the Bar Association of the City of New York are men with 
ample opportunity for observing the working of our judicial system 
and are not likely to propose remedies which will not be efficacious. 

A single word in regard to the point suggested by Senator Dilling¬ 
ham in connection with section 2. Illustrations from a man’s own 
practice may be dangerous, but I can illustrate from a single instance 
in my own practice as to how this would operate. 

We were trying a case involving title to land, and there was sr serious 
question of law. The judge suggested taking a special verdict, which 
was done. The jury found in favor of the plaintiff in response to 
every question asked in this special verdict. Judgment was entered 
on the verdict for the defendant on the ground that the statute of 

29069—10 - 2 


18 


JUDICIAL PROCEDURE. 


limitations had run. The case came to the Supreme Court and the 
judgment was reversed. The Supreme Court held that the trial 
judge had applied the wrong period of limitation. But there was no 
statute authorizing the courts above to enter judgment on the 
special verdict, so the Supreme Court not only set aside that judg¬ 
ment but remanded the entire case for a new trial. 

We tried the case anew, and it happened that three important wit¬ 
nesses had died before we got back to the next trial, and we had to 
try the whole case over again, with a different result on the merits, 
because the trial court had erred as to the period j)f limitation. This 
statute authorizing either the trial court or the court on appeal to 
direct judgment on the point would have saved much trouble and 
labor in that case. 

Senator Nelson. In the second section it is left to the court to 
determine on the whole case as to whether a miscarriage of justice 
has occurred; do you indorse that provision ? Ought not the appel¬ 
late court to have all the evidence before it in order to determine 
that question ? Would you limit it simply to what the record dis¬ 
closes—that is, the bill of exceptions ? The bill of exceptions may 
not give all the facts, and how could the court determine absolutely, 
unless it has all the facts before it, whether there has been a miscar¬ 
riage of j ustice or not ? 

Mr. Wheeler. Answering the question of Senator Nelson, I will say 
that counsel would embody in the bill of exceptions all the material 
points. Of course we know that in many cases some immaterial matter j 
gets in, but the point you mention would certainly be provided for by 
counsel. And while the appellate court can not pass de novo, it 
would have the whole case before it and would see where substantial 
justice would lie. 

Senator Nelson. Especially would that be important in criminal 
cases. 

Mr. Wheeler. Certainly. 

Senator Nelson. One unfortunate thing is that since we have had 
stenographers there is no limit to a bill of exceptions. Under the old 
plan the counsel would make out the summary of the testimony and 
submit it to the other side; they would agree on it, and the bill of 
exceptions would be a very short document. Now, since we have 
stenographers the counsel serve, as a bill of exceptions, the whole 
volume of stenographer’s minutes. 

Professor Irvine. If this bill should take effect as an act, then it 
becomes the duty of counsel taking up a case to convince the court 
that error was committed and, second, that it involved the substantial 
rights of his clients. He must show in what way the substantial 
rights of his clients were invaded. That would follow necessarily. 

Senator Nelson. There are two other bills in this group, I see. 

Senator Dillingham. Yes; S. 4569 and S. 4570. 

STATEMENT OF HON. EVERETT P. WHEELER—Resumed. 

Mr. Wheeler. I can state as to bill No. 4569 very briefly. If 
adopted, the effect of it would be to do away with the necessity of a 
separate transcript on appeal or writ of error. Under the present 
system if you appeal from the district court to the circuit court you 
must have a certificate from the clerk, and if you take a further appeal 
to the Supreme Court you must have still another certificate. The 


JUDICIAL PROCEDURE. 


19 


requirement is that there must in the first place be a manuscript copy 
of the testimony, which subsequently must be printed. This bill 
simply provides that the duplication shall be unnecessary—that the 
court shall provide that the printing shall be done, and once done that 
it shall stand through the progress of the whole cause. 

We have a letter, let me say, from the bar of the State of Washing¬ 
ton, in which they ask that the bill should specifically cover appeals 
to the circuit court of appeals. This bill on the face of it deals only 
with appeals to the Supreme Court, but the rules of the circuit court 
of appeals provide that the record in that court must be made up in 
the same way as in the Supreme Court. It seemed to us, therefore, 
that it was unnecessary for us to make any special provision on the 
latter subject. However, I presume you will hear from that com¬ 
mittee of the bar of Washington. They know that this bill has been 
introduced, and if upon examination the committee should feel that 
it is desirable to embody their views specifically we have no possible 
objection. 

Now, as to the bill providing for official stenographers (S. 4570)," 
that was considerably discussed yesterday. The representative of 
the National Shorthand Reporters’ Association, Mr. McBride, of 
Philadelphia, was here, as you remember, and presented some amend¬ 
ments to the bill. That bill provides for the creation of official 
stenographers. We find that the present method has this great 
disadvantage: There is no official stenographer, no person appointed 
by the court. And while in most cases it happens that we agree upon 
a stenographer, yet it sometimes happens that we do not agree. 

Our idea was that it was better not to fix in the statute the matter 
of compensation, but leave it to the courts in the separate districts, 
providing, however, that the fees in the federal court shall not be 
greater than the compensation paid to the state stenographers. The 
stenographers’ association think it would be better to fix by the bill 
that the compensation shall be the same as is paid in the States 
where the federal courts sit. 

We are not specially tenacious about that. Our general view was, 
if I may speak frankly, that some Members of Congress felt that 
economy in judicial proceedings is important, and we agree with 
them that it is important; and they think that the rate in some 
States was too high and that it wmuld be best to leave it to the judges 
of the several States, who would be the best authorities to determine 
what was just. We all agreed that it was impossible by legislation 
to frame a fixed scale of compensation for all the States. 

Senator Nelson. In our State the stenographers are appointed by 
the State, and it is only when counsel wants a copy of the tran¬ 
script that they have to pay for it. The statute fixes that. Does 
this bill provide that the party shall pay any part of the salary of 
the stenographers ? 

Mr. Wheeler. No; only for the transcripts, leaving the salary to 
be paid by the Government. 

Senator Nelson. I have no doubt that there ought to be stenogra¬ 
phers appointed. 

Senator Dillingham. Does this complete the presentation which 
you wish to make ? 

Mr. Wheeler. We have nothing further to submit. We desire to 
express our obligations to the committee for this hearing and for 
the attention and consideration which the committee has given to 


20 


JUDICIAL PROCEDURE. 


the points we have found it desirable to present. We are filing a 
brief which will be incorporated with the proceedings of the committee. 

(The following is the brief filed by Mr. Wheeler on behalf of the 
American Bar Association:) 

Judicial Procedure of the Courts of the United States. 

BRIEF FOR AMERICAN BAR ASSOCIATION IN SUPPORT OF BILL “TO 

REGULATE THE JUDICIAL PROCEDURE OF THE COURTS OF THE 

UNITED STATES.” 

[S. 4568—H. R. 14552.] 

This bill was drawn by a committee of the American Bar Associa¬ 
tion. It has been under consideration by that association for four 
years. At the meeting at Seattle in August, 1908, it was much 
discussed and received the almost unanimous support of a large and 
representative meeting of the association. The second section was, 
however, referred back to the committee. With the exception of 
that section the bill was presented to the Sixtieth Congress, was 
discussed fully before the Judiciary Committee, and was amended 
to meet the criticisms of some members of the committee. With 
the addition of section 2 it was approved almost unanimously after 
full discussion by the American Bar Association at its last meeting 
in Detroit. The bill represents and was drawn and approved by 
three professional elements—the bench, the practicing lawyer, and 
the university. 

So far as procedure in appellate courts is concerned, what we wish 
to accomplish is this: That in the consideration in an appellate court 
of a writ of error or appeal, judgment should be rendered upon the 
merits without permitting reversals for technical defects in the proce¬ 
dure below, and without presuming, as many courts now do, that if 
there has been a violation in some particular of some rule of law, that 
violation has been prejudicial to the result. The effect of the first 
section of the bill that is now before you is to enact that the pre¬ 
sumption shall be that the decision below was right, and that if 
it was erroneous in some detail the error did not affect the result. 

Perhaps no better argument can be stated for this proposition than 
a passage in the opinion of Mr. Justice Martin of the court of appeals 
of New York. It expresses the great embarrassment that lawyers 
feel in the trial of important cases. In Lewis v. The Long Island 
Railroad Company (162 N. Y., 50, 67), the judge delivering the opinion 
of the court, says: 

“ After carefully and studiously examining the great number of 
perplexing and difficult questions determined during the heat and 
excitement of a sharp and protracted trial, we can but admire and 
commend the scrupulous and intelligent care and ability evinced by 
the trial judge, and the almost unerring correctness of his rulings. 
When the number and variety of the questions raised are considered, 
we are surprised, not that a single error was committed, but that 
there were not many more.” 

In other words, our procedure is such that it is impossible, even 
with a judge of “ almost unerring correctness,” to get a verdict on 
the trial of an intricate cause that will stand the test of an appeal. 


JUDICIAL PROCEDURE. 


21 


It needs no argument to show that such procedure needs revision. 
The State of New York within a few years created a commission to 
inquire into the causes of the law’s delay. Several judges of the su¬ 
preme court of that State were examined before the commission. 
Presiding Justice Hirschberg said in the course of his.examination: 

“I think that one great difficulty is that our system is distinctively 
an appellate system, and it is based upon the fundamental idea that 
a trial and a decision are always wrong; the result of it is that people 
indulge in litigation because the opportunities are great; they are 
sure of two appeals, and until the final decision is made they are in 
no hazard.” (Law’s Delay Commission Report, p. 269.) 

“I have always thought it was a fatal feature of our judiciary sys¬ 
tem * * * the idea that if a man tries a suit and loses he can 

appeal on the assumption that that was wrong instead of appealing 
on the assumption that it was right.” (Ibid., p. 270.) 

Mr. Justice Scott agrees with this view: 

“Mr. Hayes. Have you any suggestion to make on appellate pro¬ 
cedure ? 

“Judge Scott. You should change that rule of presumption. In 
the first place, I think the appellant should have cast upon him the 
burden of establishing that there had been error below, and also of 
showing that that error had been prejudicial. None of us is so wise 
that he can try a long case without committing some error. In addi¬ 
tion to that, the appellate division should have the power of awarding 
judgment.” (Ibid., p. 288.) 

Mr. Justice O’Gorman says: 

“One of the gravest faults with our present mode of trial is the 
ease and frequency with which judgments are reversed on technicali¬ 
ties which do not affect the merits of the case and which at no stage 
of the case have affected the merits. 

“We have a rule in our State that the commission of an error upon 
the trial of a cause by a trial justice is presumptively prejudicial to 
the appellant, and instead of the appellant being required to persuade 
an appellate court that he has suffered substantial wrong, the moment 
that he can place his finger on a technical error the burden is at once 
shifted and the respondent required to persuade the court that there 
was no harm following that particular ruling. Now, we all know, and 
there are very few who seek to vindicate the practice, that very many 
cases are sent back from the appellate division upon alleged errors 
which have never affected the merits of the case.” (Ibid., pp. 316- 
317.) 

“At the present time nearly every defeated party is willing to take 
a chance of securing a reversal on appeal. They have every encour¬ 
agement.” (Ibid., p. 319.) . 

In opposition to all the rules of technicality, which work such injus¬ 
tice and cause such delay, we urge that laid down by Chief Justice 
Marshall in Church v. Hubbart (2 Cranch, 232): . 

“It is desirable to terminate every cause upon its real merits if 
those merits are fairly before the court, and to put Rn end to litigation 
where it is in the power of the court to do so.” 

The amendment proposed is the equivalent to that already adopted 
by the legislature of New York in criminal cases. We quote from the 
opinion of the court of appeals in People v. Strollo. (191 N. Y., 42.) 


22 


JUDICIAL PROCEDURE. 


At pages 61, 67, the court said: 

“ Under the statute our powers and duties in capital cases are 
strictly correlative. While we have power to reverse m the interests 
of justice, eyen where no exceptions are taken, it is also our duty to 
disregard errors which, although excepted to, do not affect the sub¬ 
stantial rights of a defendant. Guided by this rule, we feel con¬ 
strained to hold that none of the general criticisms referred to under 
this head present sufficient grounds for reversal. * * * 

“ These various elements of the question, considered in connection 
with the functions and powers of this court, bring us face to face with 
the situation that is apparently paradoxical but actually logical. 
That is to say, we might have a condition in which we would be com¬ 
pelled, in a civil case, to grant a new trial for a loss of original docu¬ 
mentary evidence, although under similar conditions, in a case involv¬ 
ing human life and liberty, we may be bound to deny such relief. 
And why should this seemingly anomalous difference exist ? Because 
this is a court of statutory origin and vested with none but statutory 
jurisdiction. Thus it happens that in civil cases our powers are lim¬ 
ited to the review of errors which are raised and presented by excep¬ 
tions, while in criminal cases we are not only empowered but com¬ 
manded to give judgment without regard to technical errors or defects, 
or to exceptions which do not affect the substantial rights of the 
parties. (Code Crim. Pro., sec. 542.) This power of review on crim¬ 
inal appeals is still further broadened in capital cases by the legislative 
direction that ‘when the judgment is of death, if it be satisfied that 
the verdict was against the weight of evidence or against law, or that 
justice requires a new trial, whether any exceptions shall have been 
taken or not in the court below.’ ” (Code Crim. Pro., sec. 527.) 

In dealing with this important subject, we ask you to put your¬ 
selves in the attitude of a lawyer who has a righteous cause, and who 
naturally desires to bring it to trial and obtain final judgment for his 
client as soon as possible. Is not this the attitude you always want to 
occupy ? Doubtless we are sometimes called upon to defend a client 
who has no defense upon the merits. As long as the law gives the 
right to interpose a technical defense and prolong the litigation, the 
lawyer is blamed by many if he does not exert his skill to the utter¬ 
most for that purpose. When we look at our profession from the 
standpoint of the Commonwealth; when we consider that we are 
not only attorneys for a client, but officers of the court, and charged 
with an important part in the administration of justice, we must 
admit that we occupy a humiliating position whenever we under¬ 
take to defeat it. It may be a lawyer’s duty to occupy this position 
under the existing system. All the more, therefore, is it our duty as 
citizens to endeavor to reform the system, so that these means of 
procrastination shall no longer be available. 

The precise language of the act recommended by the American Bar 
Association was criticised when the subject was before this committee 
in 1908. The language used is taken from order 39, rule 6, of the 
Rules of the English Supreme Court of Judicature,® which has been 
in force, with entire success, for twenty-six years. The language pro¬ 
posed by President Taft before his election is this: 

“No judgment of the court below should be reversed except for 
an error which the court, after reading the entire evidence, can 
affirmatively say would have led to a different verdict.” 6 


a Wilson’s Practice, 331. 


6 15 Yale Law Journal, 1. 



JUDICIAL PROCEDURE. 


23 


Either form would be satisfactory to us. 

The objection that is commonly taken to this doctrine, so far as 
it applies to the review of cases that have been tried before a jury, is 
that expressed in a letter that we have received from one of the fed¬ 
eral judges to whom we submitted the proposed bill. He puts it 
thus: 

If an appellate court either affirms or reverses because of its own opinion as to 
the merits, it substitutes a trial by judges for a trial by jury. 

Our reply to this is that it misconceives the scope of the proposed 
reform. So far from depriving the verdict of the jury of its value, 
it tends to establish the verdict. Long experience in the trial of 
cases before a jury, and conversation with intelligent jurors of our 
acquaintance, has convinced us that jurors pay much less attention 
to fine points of evidence, or to nice distinctions in the charge, than 
judges generally seen to suppose. In more than half the cases 
where judgments have been reversed on questions of evidence, the 
ruling in the court below did not affect the verdict in the slightest 
degree. This being the case, it is unjust that the parties should be 
put to the expense and delay of a new trial. 

Therefore, as practicing lawyers, it is clear to us that the presump¬ 
tion of the appellate court should be that a ruling on the evidence 
which it deems erroneous did not affect the result. It should be for 
the defeated party to satisfy the appellate court that the ruling was 
actually prejudicial to him upon the merits. 

The rule which the committee endeavored to express in the pro¬ 
posed legislation is actually in force in New Hampshire, Massachusetts, 0 
Kansas, and other jurisdictions. There, for example, the verdict of 
the jury as to part of the issue may be retained and a new trial may 
be ordered, only upon issues as to which the exception extends. 

While we can not say that any of the federal courts has ever 
sinned as much as some of the state courts, yet we would put upon 
the statute book a uniform rule for all the circuits, which will embody 
the rule that prevails in some of them and which will make it impossi¬ 
ble for some of the decisions to be made that the former chairman of 
this committee, Mr. Lehmann, of St. Louis, adverts to in an address 
he has recently delivered. We call attention to one, because it 
seems to us on the whole the most flagrant. Yet, under the existing 
system in some States, it is not only possible, but it has actually 
occurred. That was an indictment for rape. The proof y^as clear 
and the man was convicted, but a writ of error w&s sued out and the 
lawyer discovered this defect in the indictment. The constitution 
of Missouri requires that the indictment should conclude “against 
the peace and dignity of the State,” but in engrossing the indictment 
the article “the” was omitted before the word “State.” The 
supreme court of Missouri held, in State v. Campbell (210 Mo., 
202), that the omission was fatal, although they said (p. 234) “The 
testimony as disclosed by the record in this case was amply sufficient 
to warrant the court in submitting the question to the jury.” They 
reversed the judgment of conviction. The indictment being held 
void, of necessity the guilty man would go free unless a new indict¬ 
ment should be found and the case tried again. 

a Dulligan v. Barber (201 Mass.. 228, 233). Dooley v. Boston El. R. Co. (ibid., 
429, 437). Chapter 236, Laws of Massachusetts, 1909. 



24 


JUDICIAL PROCEDURE. 


There are other cases that might be cited where courts on appeal, 
particularly in criminal cases, have stretched the rule of error to 
the furthest limit. It is not in the interest of justice that this should 
be permitted. The maxim of the common law was that the judge 
himself is condemned when he acquits the guilty. But we have come, 
in many jurisdictions, to the very opposite of that, dependent, we 
may say, a little upon the character and temper of the judge who hap¬ 
pens to sit on the case. Some judges are more technical than others, 
and attach more importance to points like this than others do.. That 
ought not to be the condition of the law. There ought to be a general 
rule formulated by Congress which shall control in all the circuits 
of the United States, so as to make these reversals for purely technical 
defects impossible in any of the federal courts. 

Society has an interest in the punishment of the guilty. Under 
our system the accused has every chance in the first instance. The 
judge must charge that he can only be convicted if the jury find him 
guilty beyond a reasonable doubt. His counsel will probably argue 
that it is better that ninety-nine guilty men should escape than that 
one innocent man should be convicted. If, after all that, the jury 
find the accused guilty, there is a strong presumption of his guilt, 
and it ought not to be possible for a person in that situation to be 
allowed to take advantage of such technical errors, which do not 
affect the merits, and which have nothing to do with the question of 
his guilt or innocence. We do not always get the most skillful 
prosecuting attorneys, and under the present rule, as it is often 
administered, there is required of them almost preternatural skill 
and foresight in order to guard against questions and objections 
taken in this way. 

Section 2 of the bill was drawn so as to provide a method by which 
a verdict on questions of fact may be taken on trial, reserving ques¬ 
tions of law for more deliberate consideration, either by the trial judge 
or in the appellate court. It authorizes the court to direct judgment 
to be entered upon the verdict or upon the point reserved, if conclu¬ 
sive, as its judgment upon such point reserved may require. 

This amendment gives additional value to the trial by jury. It 
will prevent the delay, expense, and consequent injustice caused by 
new trials upon every issue, when the judgment of the appellate court 
differs from that of the trial court upon some point of law. 

To quote from the opinion of the New York court of appeals in a 
recent ca’se: 

“It frequently happens that cases appear and reappear in this 
court, after three or four trials, where the plaintiff on every trial has 
changed his testimony in order to meet the varying fortunes of the 
case upon appeal.” 

This is a direct encouragement of fraud and perjury. (Walters v. 
Syracuse Rapid Transit R. Co., 178 N. Y., 50.) 

On the other hand, a just cause may be lost on the second trial 
because of the death of witnesses or their departure to parts u nknown. 

A notable instance of the delays under the present system is 
the Hillmon case (145 U. S., 285; 188 U. S., 208). Second judgment 
of reversal was twenty-three years after suit begun. 

Another instance is that of Williams v. Delaware, Lackawanna 
and Western Railroad, reported in 155 New York, 164, and in many 
other New York reports. This case was tried seven times, and was 


JUDICIAL PROCEDURE. 


25 


in litigation twenty-two years. The plaintiff finally succeeded. But 
of necessity his victory was barren. 

The practice we propose is the common-law practice. It pre¬ 
vails in England to-day, under the judicature act. In that country 
final judgment is rendered on appeal in 90 per cent of the cases in 
which the judgment below is reversed. In only 10 per cent of the 
reversals is a new trial ordered. 

The remaining sections of the bill deal with gross abuse that pre¬ 
vails in criminal practice; that is to say, the suing out of writs of 
error or taking appeals solely for delay. These sections in substance 
provide that in criminal cases, whether they come before the court 
on a writ of habeas corpus or by direct writ of error, there shall be 
no allowance of an appeal in habeas corpus or of a writ of error from 
the judgment, unless a judge of the appellate court shall certify 
that there is probable cause to believe that the defendant was un¬ 
justly convicted. 

Under the present practice a prisoner who has been convicted in a 
state court, has carried his case up to the highest court and has had 
the judgment against him affirmed, sued out a writ of error from the 
Supreme Court, alleging that there was a federal question, when, in 
point of fact, there was none. His only object is delay. Under the 
present statute the judge in such case is bound to allow that writ of 
error. The same result is also attained by suing out a writ of habeas 
corpus from a federal court. The judge holds that there is no federal 
question involved, and that the prisoner should be remanded. Under 
existing legislation, he has a right to appeal, and that appeal operates 
as a stay, and in that way the whole object of criminal law is defeated. 
This should be to do justice and to do it promptly and certainly. 
All the authorities on that subject agree that certainty of punish¬ 
ment is much more important than its severity. 

We recommend in this sixth section one other change, viz, that even 
in capital cases the writ of error shall be taken to the circuit court of 
appeals. Under the present practice it is taken directly to the 
Supreme Court of the United States. There does not seem to be any 
good reason for that distinction. Of course a capital case is important 
to the individual, but it is also important to the community. If the 
accused has committed a crime, it is important that he should be pun¬ 
ished for it. Practically the circuit courts of appeal do administer 
satisfactorily criminal jurisprudence in their respective circuits; and 
we fail to see why the Supreme Court, which is charged with duties of 
great national importance, and is the court of final review in con¬ 
stitutional cases, should be obliged by statute to consider every 
capital conviction in any of the federal courts. Writs of error are 
almost always sued out in such cases. The lawyer who is defending a 
man accused of a capital crime feels that he ought to exhaust every 
remedy the law gives him. Why should we put on the Supreme Court 
the burden ? Our proposed amendment does not take away the right 
of that court to grant a certiorari. 

As a matter of fact, the existing procedure in criminal law was 
framed at a time when it was really needed to protect the criminal, 
especially from political persecutions. This is no longer necessary. 
The criminal is well protected. He must be first indicted bv a grand 
jury of at least thirteen men. They say, in finding the true bill, that 
the man is guilty of the offense. As Sir James Stephen points out in 


26 


JUDICIAL PROCEDURE. 


one of his books on criminal law, it is a remarkable thing to say that 
a man who by thirteen of his neighbors has been declared to be guilty 
shall start off on his trial with a presumption of innocence; still he does. 
The courts tell the jury all the way through, “This man starts and 
carries through the trial with him this presumption of innocence.” 
Yet at least thirteen of his neighbors have already said that he is 
probably guilty of the crime of which he is accused. The presumption 
of innocence must be rebutted by sufficient evidence before the jury 
beyond a reasonable doubt, whereas in a civil case merely a pre¬ 
ponderance of the evidence is sufficient. Then, when the prosecutor 
overcomes all those advantages of the accused, there must be a 
unanimous verdict. One man can hold up the whole case or compel 
a mistrial. Again under the present procedure, if there has been any 
technical error, even though it does not affect the merits, there must 
be a new trial. Every rule possible is made to protect the criminal. 

One thought has impressed us very much in reading modern 
English criminal trials and American criminal trials, American 
courts are far more technical than the English. They have amended 
their old law. We have adhered to it. They know that the intri¬ 
cacy and technicality of criminal procedure are obsolete, which they 
have rendered obsolete and no longer fitted for civilization. We 
pride ourselves on our business capacity and our way of doing things 
in a common-sense way, and yet we hang on to these old technicali¬ 
ties that the Englishman has dropped thirty years ago. They pass 
over little things that we get a new trial for; they decide cases upon 
the merits more expeditiously and more in consonance with justice 
than do we. 

The American Bar Association, speaking for the bar of every 
State, urges upon Congress to reform these abuses and redeem the 
promise of Magna Charter that justice shall be denied or delayed 
to no man, and that the administration of justice shall not be so 
cumbrous, dilatory, and consequently expensive that it shall be 
obtainable only by the rich; and we call especial attention to the 
language of President Taft on this subject in his annual message 
presented to Congress December 7, 1909: 

“In my judgment a change in judicial procedure, with a view to 
reducing its expense to. private litigants in civil cases, and facili¬ 
tating the dispatch of business and final decision in both civil and 
criminal cases, constitutes the greatest need in our American 
institutions.” 


INDEX. 


Page. 

Allen, Stephen H., statement of. 15 

Eastman, Samuel C., statement of. 13 

Irvine, Frank, statement of. 17 

McBride, George A., statement of. 5 

Wheeler, Everett P., statements of... 3, 8,18, 


27 


































